Lacking any compelling defense of Donald Trump, his lawyers engaged in all sorts of trickery and misdirection and whataboutism on Friday. It’s hard to blame them. They were dealt a bad hand. Trump is obviously guilty. So instead of pounding the facts or pounding the law, they—as the old legal maxim goes—pounded the table.
It started when Trump attorney David Schoen made a somewhat startling accusation: “We have reason to believe the House managers manipulated evidence and selectively edited footage,” he asserted. One such example cited was from Rep. Eric Swalwell’s presentation where he referenced a tweet from a Trump supporter named Jennifer Lynn Lawrence. On Wednesday, Swalwell presented her comments as if she were saying that she was bringing the cavalry. In actuality, though, Lawrence tweeted that she was “bringing the Calvary.”
The obvious conclusion from Swalwell (and everybody, really) was that Lawrence simply doesn’t know the difference between “cavalry” and “Calvary,” but, in a blog post, Lawrence called out Swalwell, arguing that she actually meant “Bringing the Crucifixion of Jesus Christ (AKA the salvation of everyone) back to Washington DC…” This line of argumentation was picked up by the defense on Friday: “The tweeter promised to bring the ‘Calvary,’” Schoen said. “A public display of Christ’s crucifixion, a central symbol of her Christian faith with her. A symbol of faith, love, and peace.”
Based on the context, it appears more likely that Lawrence simply used the wrong word. Regardless, the fact that Trump's defense began by making an issue out of this sideshow, instead of, you know, proving that he did not incite an insurrection, tells you all you need to know about the amount of evidence at the defense’s disposal.
Next, the defense decided to roll video of what felt like hundreds of clips of Democrats telling their supporters to “fight.” This was supposed to prove that all politicians use martial terms (they do), and that these metaphors are all harmless and meaningless. There is no doubt that the term “fight” is frequently used metaphorically. Likewise, there’s no doubt that some Democrats have behaved badly and hypocritically and have broken norms in the past.
But what Trump did was qualitatively worse. MUCH worse. Without rehashing his pattern of rhetoric and behavior that the prosecution ably demonstrated these last four days, when you tell an angry crowd that is gathered on the day the Electoral College votes are being certified that they have to “fight like hell”—and then you order them to march down to the Capitol (where the votes are being certified)—the notion that the word “fight” translates to “don’t forget to vote against my adversaries in the primary election two years from now” seems absurd.
The defense also took great pains to point out that, during his speech, Trump once told his supporters they should “peacefully and patriotically make your voices heard.” I’m left wondering: Should such a disclaimer, casually dropped once in every communication, make one immune from any consequences from the rest of your language? Regardless of this disclaimer, several members of the mob clearly believed they were taking orders from Trump. Oh, and he used “fight” or “fighting” 20 times in the speech.
Another way the defense sought to undermine the incitement allegation was to suggest that the violence was pre-planned (“You can’t incite what was already going to happen,” said Michael van der Veen). But as the prosecution made clear this week, Trump’s incitement involved months of advancing the “big lie” that the election was stolen. His behavior on Jan. 6 was merely the icing on the cake.
The defense also frequently invoked the “Brandenburg test,” which comes from Brandenburg v. Ohio. The truth is that the legal standard for proving incitement is very high. But here’s the thing. This isn’t a legal trial, it’s an impeachment, which is not subject to this high bar. Still, the problem with crafting an impeachment that is solely based on incitement is that the defense has a clear shot at conflating the legal standard with the political one.
In this regard, Democrats might have been better off by including various articles of impeachment, which might have included incitement, as well as “dereliction of duty” for Trump’s failure to save Mike Pence or quickly send in backup police support, etc. Heck, I think Trump’s call to the Georgia Secretary of State to “find 11,780 votes”—which has nothing directly to do with the insurrection—warranted an article of impeachment in its own right.
Regardless, any normal person watching this trial would vote to convict Donald Trump. The prosecution has him dead to rights. The most absurd idea proffered by the defense might have been that if you impeach Trump you are infringing on his First Amendment rights. But there is no reason to believe that Trump is being penalized for taking controversial political positions. No, he is being held accountable for fomenting an insurrection.
In a desperation move, the defense argued that impeaching Trump was “constitutional cancel culture,” van der Veen said, and tantamount to “canceling 75 million Trump voters and criminalizing political viewpoints.” When you’re making these kinds of made-for-Fox News arguments, you know you don’t really have a good defense.
The fact that the defense only used a fraction of the time they were allotted suggests that even by stretching credulity and inventing defenses of Trump’s behavior, they still could only keep up the charade for so long.
Their schtick wouldn’t convince any reasonable person who was paying attention, but Republican Senators aren’t reasonable. At least, they cannot be reasoned with. All they need is a somewhat plausible reason (Trump couldn’t do it because he cares so much about law and order....it was really ANTIFA!) to do what they were always going to do anyway.
Only in a truly rigged game could the Bad News Bears beat the New York Yankees. But I suspect that is what is about to happen.
